Texas judge to hold hearing on risk of executing the innocent

June 25, 2010

By JUAN A. LOZANO Associated Press Writer

© 2010 The Associated Press

HOUSTON — Texas' use of capital punishment will undergo legal scrutiny this fall as a judge on Friday scheduled a hearing to listen to evidence on whether there's a substantial risk the state's death penalty law allows for the possible execution of an innocent person.

State District Judge Kevin Fine set the hearing for Nov. 8 as part of a pretrial motion in which two defense attorneys for a Houston man facing a possible death sentence asked that Texas' death penalty statute be declared unconstitutional.

Fine initially granted the motion in March, declaring the law unconstitutional because he believed it is safe to assume innocent people have been executed. He also questioned whether society, considering the recent history of death row inmate exonerations, can continue to ignore this reality.

Anti-death penalty groups lauded his March decision and many elected officials, including Gov. Rick Perry, criticized it.

Fine, a Democrat, is a judge in Harris County, which sends more inmates to death row than any other county in the nation. Texas has carried out more executions than any other U.S. state.

The November hearing could last at least two weeks and death penalty experts from around the country are expected to testify, said Casey Keirnan, one of the defense attorneys that asked for the hearing. Keirnan and Bob Loper are representing John Edward Green Jr., accused of fatally shooting a Houston woman and wounding her sister during a June 2008 robbery.

"I think everybody in the United States would agree that the possibility exists" an innocent person has been executed, Keirnan said. "We think there is much more than a possibility, based on all the exonerations, all the problems with the forensics."

Kari Allen, a prosecutor with the Harris County District Attorney's Office, said her office isn't opposed to a hearing that would examine the constitutionality of the state's death penalty law.

"We are opposed if the hearing is about whether or not Texas has executed an innocent person," she said. "We do not believe (Fine) has the jurisdiction to make that sort of ruling."

Prosecutors have also objected to some of the issues that defense attorneys plan to bring up at the hearing, including the legitimacy of eyewitness testimony.

The Harris County District Attorney's Office had filed a motion asking to remove Fine from the case, accusing him of being biased against capital punishment. But another judge appointed to review the motion denied the request last month, saying Fine's impartiality could not be reasonably questioned

Attorneys for Green, who's being held in the Harris County jail, argue Texas' death penalty statute violates their client's constitutional right to protection from cruel and unusual punishment. They say it's because the law's use has created a substantial risk that innocent people have been, and will be, convicted and executed.

Prosecutors argue the law is well-settled and that capital punishment can be fairly and properly sought in the state.

There is strong support in Texas for the death penalty, but the state's use of it has recently come under fire from death penalty opponents in two cases.

Earlier this month, a judge ordered DNA testing on a strand of hair that was the only physical evidence linking a man, Claude Jones, to a 1989 shooting death for which he was executed 10 years ago.

In April in a separate case, a state forensics panel renewed its review of a questionable arson finding that led to the 2004 execution of Cameron Todd Willingham, who was convicted of setting a fire that killed his three children.

Fine has said he is not legislating from the bench but that there was no precedent to guide him in resolving the constitutional issues raised by Green's attorneys.

Last year, the state executed 24 people, including six cases from Harris County. Thirteen people have been executed so far this year, one from Harris County. The state's next execution is set for Wednesday.

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